With the festive season rapidly approaching it is probably worth looking briefly at some of the issues that have caught the eye over the last 12 months. Indeed I have written on some of these subjects in earlier posts to which readers may want to refer back to (time permitting).
In short it has been a mixed bag for the whole development ‘industry’.
The Coalition have begun to deliver on its desires to see a reduction in the role of lawyers in the development process however what we have seen is the introduction of legislation, guidance and further proposals all of which appear to provide continued rich pickings for planning lawyers for some considerable time to come.
The Conservatives’ great idea of ‘Localism’ (quickly attacked as ‘the NIMBYs’ charter’) was trumpeted as the way forward with the proposed handing back of power from local planning authorities (LPAs) to local communities to control their own destinies and determine what development came forward within their areas.
One of the initial election campaign promises from Communities Secretary Eric Pickles to be attempted was the abolition of the Regional Spatial Strategies. This was part of the ‘Localism’ drive but floundered on the lack of any assessment of the environmental impact of such a proposal. At present, with the exception of the East of England Plan in respect of which an abolition order has now been laid in Parliament, the RSSs’ remain in force and continue to be material planning considerations subject always of course to the question of the weight to be attached thereto being a matter for the relevant decision maker.
Then Eric Pickles started to rely on prematurity arguments for rejecting planning applications, the argument being that approving them would close off options for development strategies in preparation. This provided equally fruitless after he was forced to quash his decision in a number of high profile proposals.
The emphasis has of course now shifted, in no small part as a result of recessionary pressures and the Treasury inspired ‘growth agenda’. There is much greater focus on LPAs’ five-year housing land supply (or lack thereof in a lot of cases) and the impacts of the National Planning Policy Framework (NPPF).
There is therefore an inbuilt tension between on the one hand ‘Localism’ and on the other hand the ‘growth agenda’. The raised expectations arising on both sides means that this may very well become an area in which the courts become involved particularly when looking at for example neighbourhood planning and questions associated with determining the extent of neighbourhood areas, defining the relationship between neighbourhood and local plan in any particular area, or deciding whether a neighbourhood plan can precede a delayed local plan.
The NPPF took effect on the 27th March 2012 with transitional provisions and one of its major planks is the presumption in favour of ‘Sustainable Development’. For plan-making this means that: LPAs should positively seek opportunities to meet the development needs of their area; Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole; or specific policies in the NPPF indicate development should be restricted. For decision-taking this means: Approving development proposals that accord with the development plan without delay; and Granting permission where the development plan is absent, silent or relevant policies are out-of-date unless: any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole; or specific policies in the NPPF indicate development should be restricted.
LPAs therefore now need to get local plans in place otherwise they risk losing the ability to control ‘Sustainable Development’. Additionally, it means that they cannot hide behind the prematurity argument to reject schemes although timing could still play a part if and where a LPA is close to adopting its local plan.
The NPPF has to that extent forced LPAs’ hands. Many LPAs are now progressing local plan preparation as a matter of urgency. Indeed it may be difficult for authorities who have to revisit already in force local plans in order to ensure that they are NPPF compliant in advance of the fast approaching end of the transitional period (i.e. next Spring). As part of that process they are grappling with the issue of the s.33A duty to engage and co-operate with adjoining authorities (s.33A Planning and Compulsory Purchase Act 2004 inserted via Localism Act 2011). This may be ripe for challenge particularly where timing means that the process may have begun pre-duty but where scrutiny and adoption fall post-duty.
The Community Infrastructure Levy (CIL) was the new planning charge which took effect on 6th April 2010. This is governed by the Community Infrastructure Levy Regulations 2010 amended first by the Community Infrastructure Levy (Amendment) Regulations 2011 and then more recently by the Community Infrastructure Levy (Amendment) Regulations 2012. The purpose of CIL is to raise funds from developers to fund a wide range of infrastructure and operates on the basis of a charging schedule with a tariff based approach to different forms of development.
At the time of writing a number of LPAs have gone through the process and are now operating CIL. Newark & Sherwood (1st December 2011), Shropshire and Redbridge (both 1st January 2012), London Mayor (Crossrail) and Portsmouth
The latest Community Infrastructure Levy (Amendment) Regulations 2012 took effect on 29th November and the main changes ensure that s.73 variation applications do not trigger duplicate payments for the same development coupled with confirmation that CIL will not be payable on planning permissions replacing extant and unimplemented permissions granted before 1st October 2012. What the recent revised Regulations do not provide for are either the ability to apply receipts to the provision of affordable housing or the ability to pass a ‘meaningful proportion’ of receipts to neighbourhood bodies both of which had previously been trailed in the press.
The Mayor of London has announced a consultation on the Mayoral CIL. This involves issues such as the Use of planning obligations as a means of funding Crossrail; a change in the charges and contribution calculation on gross internal areas rather than gross external areas in a drive to secure consistency of approach; details of the policy on the use of the Mayoral CIL; the relationship between Crossrail contributions and the Mayoral CIL; the role of the Mayor in the setting of a borough's CIL; and practical implementation issues e.g. de minimis thresholds, measurement, phased development and collection. It is proposed that the new draft guidance is to replace the existing SPG published in July 2010 and the consultation closes on the 15th January 2013.
CIL looks like it will create continuing legal issues not least because some LPAs introduced unnecessary complexity into the process by having both zonal and differential approaches to their schemes. In some cases different sizes of development are liable to different or no charge e.g. large developments being subject to the charge while smaller schemes are not. This approach would appear to be ripe for challenge with the chilling prospect of approved schedules being thrown into doubt by a sucessful challenge. Whatever scheme is proposed needs to justified by objective evidence and the more complex a scheme the harder that becomes and the greater the chance of challenge.
Viability is a live issue in the context of CIL. The NPPF says development schemes identified in local plans "should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened" and consequently LPAs are forced to give much more serious consideration to the question notwithstanding that they very rarely have in-house expertise to support charging schedule preparation or development control application consideration although to be fair developers need to disclose figures that they might not otherwise want to in order to convince the planners.
The Coalition has also been busy with its legislative proposals.
The Growth & Infrastructure Bill contains a package of planning reforms. These include:
A ‘special measures’ proposal to allow developers to bypass underperforming councils and submit major applications directly to the Planning Inspectorate is proposed. The proposal also provides that there would be no further recourse to appeal. There is uncertainty over how councils' performance will be measured and by whom and therefore there is scope for legal challenges around these decisions and permissions granted in consequence of them. Current potential selection criteria appear to be based on major applications determined within the relevant 13 week period over a two year period with a 30% threshold figure coupled with a 20% threshold figure in respect of major decisions overturned at appeal over the same period. This approach appears to target both speed and quality of LPA decision making.
Town and Village Green (TVG) reform to address the question of abuses of the process to prevent TVG applications stopping development proposals in their tracks or at best slowing down proposals while the claims are dealt with. The Bill would ban applications to register land as a TVG if sparked by a "trigger event" such as a planning application which means that vexatious claims can be largely prevented.
Proposed amendments to the prior approval regime for telecom masts in sensitive areas such as the National Parks are likely to be contentious but proposed changes to the stopping up & diversion of public highways and rights of way so that they can be dealt with within a single consent regime are more likely to be welcomed.
The Enterprise and Regulatory Reform Bill contains some welcomes changes to the Heritage Planning regime and will reform the way in which Listed Building
The Coalition is also looking at a package of reforms dealing with Permitted development rights in terms of Residential, Retail, Offices & Industrial development so that current thresholds are increased to take more proposals out of the need to secure planning permission. This also includes certain telecoms developments as part of the wider drive to increase Broadband coverage and capacity. This consultation exercise closes on 24th December. As previuosly stated the relaxation of permitted development rights to double the size of residential extensions in rear gardens is likely to give rise to tense neighbourly relations particularly where development which was previously rejected for good planning reasons is brought forward without any real significant benefit to the economy. It seems that Communities Secretary is already rowing back from these proposals if reports in the Daily Telegraph and Daily Mail of 14th December (both reporting an interview Eric Pickles did with 'The House' magazine) are to be believed.
Changes to the Use Classes regime are also in line to address ‘Pop up shops’ and to allow change of use from commercial to residential purposes subject to the provision for a local exemption where adverse economic impact can be shown.
Changes to the Use Classes regime are also in line to address ‘Pop up shops’ and to allow change of use from commercial to residential purposes subject to the provision for a local exemption where adverse economic impact can be shown.
As part of the ‘growth agenda’ and the drive to cut down on the time taken to secure and implement planning permission the Coalition is also looking at reform of the Appeal process (consultation closes on 13th December) and restricting the ability to Challenge decisions by way of Judicial Review.
Planning Judicial Review and statutory challenges form an insignificantly small number of the total number mounted and recent figures issued by the Ministry of Justice show that these have a higher success rate demonstrating the usefulness of the process in holding decision makers to account as well as preserving the rule of law. The Coalition would be well advised to refrain from tinkering with the system in so far as it relates to Planning should it wish to avoid more rather than less litigiation in this area.
Planning Judicial Review and statutory challenges form an insignificantly small number of the total number mounted and recent figures issued by the Ministry of Justice show that these have a higher success rate demonstrating the usefulness of the process in holding decision makers to account as well as preserving the rule of law. The Coalition would be well advised to refrain from tinkering with the system in so far as it relates to Planning should it wish to avoid more rather than less litigiation in this area.
However Chris Grayling, the Lord Chancellor and Secretary of State for Justice, issued a consultation paper entitled ‘Judicial Review: proposals for reform’ on Thursday 13th December.
The paper sets out the reforms the Coalition propose to make in three key areas of the Judicial Review process namely: (i) the time limits within which Judicial Review proceedings must be brought; (ii) the procedure for applying for permission to bring Judicial Review proceedings; and (iii) the fees charged in Judicial Review proceedings.
In respect of the first, the paper identifies two categories of case to which the proposed shorter time limit might be appropriate one of which is planning decisions although on the Coalition’s own figures this is certainly not an area responsible for the bulk of Judicial Review applications.
In coming up with its proposal the Coalition seeks to draw parallels with the statutory appeals process in planning. This is however unhelpful because Judicial Review deals with procedural failings which may not always be apparent at the time of the decision and certainly will not have been considered in any detail in the preceding considerations as opposed to the appeals process which deals with merits which will have previously been considered at the pre-application stage, at the determination stage and at the appeal stage before the matter ever reaches the court. This means that on the one hand one is looking at issues that are only just emerging from investigation and inter party exchanges including discovery and Freedom of Information requests as opposed to ones that have been argued and honed down very clearly in a number of different arenas.
In addition, the reduced time limit will not provide for sufficient time to deal with either the pre-action protocol requirements introduced to try and bring about a consensual resolution without the need to resort to the court or the funding issues that so very often arise when third party challenges are in contemplation.
Despite what the Coalition believes it is thought likely that this proposal will lead to more proceedings being issued if only to protect positions while the protocol ‘Letter before action’ and funding issues are addressed.
In addition there may be scope for other avenues of challenge.
For one, the judicial discretion to extend the time limit in limited exceptional cases may fall foul of European requirements of certainty particularly in Environmental Law cases.
It is also noted that the proposed time limit is shorter than that allowed for challenging decisions of the European Institutions and may therefore be susceptible to challenge particularly in relation to those challenges which are based in Environmental Law on for example access to justice under the Aarhus Convention or failures to apply or properly apply European Directives dealing with Habits and Protected Species.
In respect of the second limb of reform the Coalition proposes changes to the procedure for permission to restrict the number of opportunities available. In cases where the claimant has been refused permission on the papers, and the matter is one which has been the subject of a prior judicial hearing, the claimant’s right to ask for an oral renewal of the application for permission would be removed and any appeal to the Court of Appeal would also be on the papers only.
Finally, in respect of the third limb of reform, the Coalition proposes that the applicant should pay a fee for an oral renewal of an application for permission to be set at the same level as for a full hearing of the Judicial Review (currently £215 but under current general proposals rising to £235). Where the application for permission is successful it is proposed that the further fee for a full Judicial Review hearing would be waived but it should be noted that the Coalition will consider the scope for adjusting fees further over time so that they reflect the full costs of providing the service.
The deadline for consultation responses is 24th January 2013.
The Coalition has also launched consultation exercises in respect of expanding the ‘one stop shop for non-planning consents’ for major infrastructure and in respect of expanding the infrastructure planning regime to business and commercial projects (both consultation exercises close on 7th January 2013).
There have also been some notable cases which have caught my eye and may be of passing interest to readers.
The Queen (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council, Golden Valley Paddocks Ltd & Secretary of State for Communities and Local Government [2012] EWHC 2161 (Admin) dealt with ‘Chicken sheds’ or ‘mobile poultry units’ which were held to not be development and did not require EIA based on size, permanence and physical attachment to the ground as a matter of fact and degree. This was held to be too narrow an approach to the meaning of ‘development’ in s.55 and ‘Building’ in s.336(1) was held to include ‘any structure or erection’. The court also expressed the view that ‘Other operations in, on, over or under land’ in s.55 should also have been considered
The Queen (on the application of) Ashley v Secretary of State for Communities and Local Government, London Borough of Greenwich & Taylor Wimpey UK Ltd [2012] EWCA Civ 559 took the view that the fairness of the appeals procedure is facts sensitive and a matter for the Court to determine. In that case the objector had fully engaged in the process and there was no reason to anticipate the submission of highly significant expert evidence at the very last minute. The court viewed the process as a breach of natural justice. In addition there was an invitation to clarify guidance to interested parties along with a query as to whether the written representation process was appropriate in the particular case
Sea & Land Power and Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB) is an often cited case asserting that the Government’s encouragement of renewable energy sources does not have “primacy” over local conservation policies. This however was not the thrust of the decision which concluded that the reality was in fact two competing policies pulling in different directions and that weight is a matter for the decision maker. The decision doesn’t change the existing law but is interesting nevertheless.
Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13 is a decision of some significance and concludes that policy statements should be interpreted objectively and should not be construed as if statutory or contractual provisions. The court decided that the application of development plan policy requires the exercise of judgment and that it is for planning authorities to do so unless irrational or perverse. However planning authorities cannot make the development plan mean whatever they would like it to mean and the question of what any particular word means cannot be answered by the exercise of planning judgment. This is a prior question on which planning judgment requires to be directed.
Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415 looks at and effectively endorses the softly, softly enforcement approach often adopted by LPAs. The court held that breaks of any duration in the display of advertisements arising as a consequence of threatened enforcement action were material breaks which brought to an end a period of continuous use. Furthermore, the use of property for advertising was not simply interrupted, it ended. If use recommenced, time started to run again. In addition it was held that a bare, unadorned structure is not an advertisement within the meaning of s.336 of the TCPA 1990.
As the old base level Chinese curse says, "May you live in interesting times". Although probably better that than the next level of curse which apparently says "May you come to the attention of those in authority" which might mean a fate worse than death when dealing with the Communities Secretary and his suspicion of planning lawyers.
Merry Christmas and best wishes for a prosperous New Year.
Merry Christmas and best wishes for a prosperous New Year.
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